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fuch a conftruftion as conreft, yet
* fcntiment of delicacy and refpeft
for the opinion of the Legislature
induced me to foTbear iffuing com
millions to fill four vacancies which
happened during the rectfs, until I
Ihculd have an opprtunity of afeer-
taining your fenfe thereon. The va
ca°cics I allude to are thofe occafion
ed by the death of Brigadier Gene
rah Abraham J.ickfon of the fccotid
Brigade of the fir ft Divifion, and of
Bri >adkr Genera! Thomas Glafs
cock of the fivft Brigade of the fc
co.id Divifion, and by the removal
of Brigadier General David Adams
i>{ the fecond Brigade of the fecond
Divifion, and Brigadier Gen. Buck
ner Harris of the.fecnnd Brigade of
the fourth D vifion The document
^narked No. 3. contains a lift of Ex
ecutive appointments made daring
the recef-; which are fubjeft to le—
giflative interference.
Permit me to call your attention
for a moment to our Judicial De
partment Among the fame peoj
tlie truth of what he has puhliflied
defeat the piaitmfF who in that cafe
has no ground to demand compen-
fation. fmee he has received no in
jury If then tins doctrine was not
intended at a political gag to prevent
the people from complaining of their
oppreflions and expofing the vicc6
of the wicked, why diftinguifli the
cafe from a cafe of (lander in which
certain what declficn the daft riot 1 union. All n- ighho:hood reads may that fund is much reduced, aim
might receive in our courts, with the be properly left to the difcrction and cafe of any emergency or real <:■ u-
adls l have referred to (taring them under the direction of the Inferior tingency of lerious import iiappen.
courts. ing during the reci fn, would be quite
The improvement of the naviga- infufftcient to meet any important c--
tion of our rivers is of at leaft equal vent, and there would be no retourpe
importance to the improvement of but to cal! thy LegifiaturCi a meafurc
oui public roads, and when you re- attended with great expence and in—
fleft on the advantages wliich would convenience I am perfuaded the Le-
refult from the undertaking, and the gilla ure on a proper view of thefub-
facility with which it could be par- jeft, will believe with me, that when,
tially accomplilbed fo as to be highly evertlie amount is ascertained, which
beneficial, I truft you will give the it is .heir dofire fhould be paid, that
in the face on the one band, and
with a (bong implication of an tin-
conditutional tendency on the other,
I beg leave to recommend the puf
fing ol a declaratory aft upon the
fubjeft, not only as a dircftion for
our courts, but for prelerving that
tlie defendant mav juftify and give ! certainty with which all criminal
tlie truth in evidence as in a civil | proceedings ought to be difiinguifli-
aftion for a libel ; the one is as ag j ed.
gravating to tlie feelings of an indi- | Therevifion of our Road laws is a
vidual as the other and has a- great I fubjeft wril worthy of your attenti
a tendency to caufe a breach of the 1 on. In the counties immediately on
peace, yet the Englifh doftrine is j the feahoard it is indeed tefs necefla
that “ tlie greater the truth thegteat- ry than in any other part of the
er the libel” and confequentiy the J btate. becaute -generally ' (peaking
greater the vices, the oppreflions or their roads are iii better order, and
the folies of the Government, or in- i ate lefs fubji ft to thofe circumftan-
dividuals, the greater the criminal!- 1 ces which render a revifion itf the
ty in publifhing them, becaufe it i other parts of the .State neceflary
enlarges the mar er of truth, for as! By the decifions of our courts ma-
I have already fitewn, if it be pro- j ny of the penalties created by thofe
veil that the di fendant either made
or publillied (lie libel hemufl be pun-
lt mult be defiruble at ail times that 1 idled, aiiho’ he may have had it in
the laws fhould be adminideredalike.
That juftice which is rendered to
one ou^ht to be rendered to all.
I am led to thefe obfervations not
by any negleft ( r willful mifinterpre-
nafion of our laws by thofe appoint
ed to adminifter them, but becaufe
from a variety of circumftanccs de- |
pending upon cuflom, intelleft, per
ception &c the courfe of praftice
and the decifions of (lie courts up
on the fame poirfts are different in
the different circuits This leads not
o-ily to great confunon, but may in
f ime inftancesbe attended with great
injury and in juftice. where the fame
party has bufinefs depending in more
than one of the circuits In one he
has a point decided in bis favor, and
in another he his the fame point de
cided againft him, and both are deci-
five of the merits of his cafe 1 his
uncertainty can only be removed by
1 he eftabiifhment of fame controlling
power over the.praftice and dec.fi-
ons of the different circuits; and I
think the neceftiiy for 'he ellnbl.fh
tnent of fuch a power will be the
more readily admitted when it is rc-
•colicfted that import ant conftituti-
onal q-j (lions often occur before
the courts, and their decifions are
fubjeft to the fame uncertainty.
Whether a court having appellate
jurifdiftion cctnpofed of all the judg
es, in which cafes could be revie .red,
and uniformity as well in matters of
his power toprr.veuneqvivrcajly the
tru h of every word he had either
•written or publifhed.
Profeffor Tucker otferves on this
fubjeft, “ when we confider the
fouice from whence thefe doftrines
have been brought to us, the real n-
ablenefs of them ouglir to b exam
ined before we yield our full affi nr
to all of them ” I do not at this
time recollcft any criminal cafe ol
libel in our own court., which' has
been prof cured to a final decifion,
yet one cafe is frelii in my recollefti-
on where a true bill was found by
the Grand fury, but never profecui
cd further ; and I think it more than
probable that the feelings of the
court as well as the profecuring ofii
cer upon that occafion diftatcd.ipoit-
ponement of the cafe, in the expec
tation of (ome leg.dative interfer
ence, rather than be compelled to
decide in favor of a principle fo ob
noxious, or to call in queflion our
own aft:, of adoption.
There are two additional circnm
(lances w hicii induces me to prefent
thi- fubjeft for your conlideration,
tlie fin! is, that in the Hate of New
York where tire Et giith common
laws was recognized ash- ingin force
this principle received a folenin de
cifion af er a very able and animat
ed difeudion by ihe moll eminent
couufel then in the Hate, in the cafe
oi one Crnff.vell, in wliich the Eng
praftice as of law eflabliflied? or li(b doftrine was upheld and govern-
whether a convention of tire Judges ed die cafe.
upon any other plan, or what plan,
will bell anfwer tlie purpofe,I leave
for your confuhration.
By feveral afts of preceding legif-
latures paffed from the year 1777 to
the year 17S4- both inclufive, you
will find, that the common law of
England is recognized and adop'ed
as the la-.v of Georgia, a . far as ref-
pefts criminal ftiatters, with an ex
ecution in favor of our Confiituiion
au<l afts of A (Terribly.
■ This was a prudent and wife pro-
vifion to a certain extent, but I np-
pr, bend it was "too general, for by it,
we nave recognized their doftrine
in cafes of libel 1 , a doftrine wliich
is often ufed by a profhgateand wick
ed min'd: y as an engine for the pun-
ifhment of a citizen who dares to tel!
the people the truth, and expofe
their oppreflions or their folly, and
ahhiugh its obnoxious tendency lias
often been felt and expofed in that
country, yet their people have no re
lief ; feme melioration lias taken
place it is true by modern llatutes
which make theJuiy the Judges as
well of the law as the faft, bur what
can a jury do when the evidence of
the mod important faft attending
the cafe is not permitted to go to
them, viz. the truth or falli y of
what the defendant is acculed’oi ?
A learned commentator on the
laws of England fays, “ it is imma
terial with refpeft to the offence of
the libel whether it be true or falfe ;
('nice tlie provocation and notthefal
Jtty is tlie thing' to be punifhed cri
minally,” and again he fays,
This eafecoiifequently might have
great weight with our courts in pro
ducing a fimilar decifion in any cafe
of libel, fliouid it occur. Tlie Le
gifia ure of the date of New-Yoik
it is tiue foon after tl-e decifion in
Croffwell’i cafe, paff. J a law de
daring the Englidt doftrine in cafes
of libel, not to b.- law, or that it
laws is well for the omiflinn as the
commiffion ofma-t rs therein exp-ef
fed, cannot be enforced as contemp
lated, and bolides, it does appear to
me that the authority of the* Inferior
Courtis too local to have a proper
effect, neither is there a fufficie'it re
(peiicibility attached to that particu-
lai du y. Tiu-y have no other agen
cy but what appertains fo them as a
CoUit, and for which they receive
no compel,l",uion, and their authority
over die loads they delegate to indi-
viuu.tls under the name of Commil-
fioners or Overfeers, whole agency
is altogether mlufficient for the pur
pole ot making a goad road. 1 might
appeal to the individual knowledge
oi every member of both branches
ot tlie Legiilature who have had oc-
Cufiuii to trave. much tltro’ the State,
whether he has not often found the
public road turned out of its courfe
ny individuals for tlie apparent pur
pose of lqu.iruig their field; or
by tliufe appointed to work upon it,
1 o/ the purpoie of avoiding the
mending ot (ome place which by
walinng ot the rains or the foftneis
ot the ground require-fome more la
bor Ulan it was convenient at the
.line to bdtow upon it; thefe are
cncumllances winch have often oc
curred, audio long as they, are fuf-
leieu to exilt, we (hail never, have
a pernianeut or good road. In oyr
otat. we nave great induements to
itimulaic u-j to every exertion-in our
power io in.prove our road:.- Our
taw materials which we raife for
market ate bulky and heavy, and the
expence of tranfporta’.ion greatly
enhanced in confequeiit of the bad
(tate oi our roads, and intercom le
generally. throughout the country
rendered more difficult, ihe incon
venience u how ever more particular
ly felt in piocutiug thole articles of
real necellny, Inch as iron and Heel,
.ait and lugar, &c. wliich from their
gteai weight and tlie quantity re-
fttbjeft ferious conlideration. Altho’
our country is comparatively yet in
its infancy, when we view thofe
countries of tire old world where
fuch immenfe advantages aredeiived
horn their inland navigation, their
example with f knowledge of thofe
advantages ought to (limulate ns to
improve ticife gifts which the God
of Nature has fo bounteoufiy be-
dowed upon our country—few of
them are in polleffion of fuclt noble
dreams as tlie Savannah and Alta-
maha, opening a navigat’^n into the
very centre of our in't i f abound
ing in natural advantages ar.d invit
ing our indudry to the improvement
of thofe benefits to our own life.
Judafterthe clofe of tlie lad feffion
l received a letter from the Honora
ble Pierce liuiier enclofinga memo
rial of lohn Hills, Esq of Phiiadel-
phia, intended for the Legidature,
offering todifpofe of to the date a
plan or chart of our fea-board. From
the terms in wliich Major Butler
fpeaks of this gentleman, I have no
dotib; but-that the papers in his pof-
feffion are executed with accuracy ;
and their ufefulnefs in a commercial
point of view, or as materials for a
correft map of that pat* of the date
is evident.—- 1 lie memorial of Mr.
Hid.*- is now fubmitted and is mark
ed a: document N° 4.
The memorial of the lad Legifia-
ture on tlie fubjeft of W aiton coun
ty, I forwarded to our Reprefenta-
lives in Congreff, and it has been
it ceafcs to be a contingency Si ougl-.t
to be fpecificnlly appropriated ; be-
fides, it will be recollefted that r®
monies can be drawn from the Trea-
fury, but bv.appropriations made by
law ; tliefe refolutions however have
all the e fie ft of a law, without un
dergoing the formalities neceffary to
its eonltitutional paffage.
It affords me real fatisfafton that
I liave it in my power to inform you.
that under the aft “ appropriating-
die funds heretofore fet apart for the-
redemption of the public-debt” the-
fum of 111.713 2.5 1 4 has been re
ceived at the treafury, in date-paper
in payment of Fraftional Surveys,
and a fmall turn has been drawn for
in payment of fome of thofe papers,
and paid out of the fpecie part of the
payments made on the fame account
...there appearing however fome
doubt of tlie proper conllruftion to
be given to that part of the aft which
authorises tlie executive to -draw foe
this money, and as I deemed tlie o-
peration of it under the condruftion
it had received, as partial in its ope
ration, 1 declined drawing on that
fund until the amount contemplated
by the aft, is in the Treafury, or
until the Legiflatuxe (had have had
an opportunity of expuffing tifceir
fenfe thereon.
The payment of our public debt
is a fubjeft in which the honor and
interett of our (late is deeply involv
ed, and every J iffieulty wliich occurs
to impede its fpeedy accomplishment
fhould not in future be law. Arid I quired to luppiy the confumption, is
underllatid other dates liave alio re
jected it.
The fecond confideration is, that
by the third article of tlie amend
ments to the Coiiditution of tlie U.
States, it is declared that, “ Congrefs
Iliad make no law -abridging the free
dom of fpeech or of tlie prefs" and
although this article is prohibitory
to Congrefs only, yet it is "to be re
collected that it was the States who
diftated this prohibition, and fimilar
rcflriftive expreffions in regard to
the prejs are to be found in our own
Conflitution ; and as the liberty of
the prefs mud unqueftionabiy be a
bridged it tlie corduftors of it can
hi prollcuied and punifhed for pub
Hilling the truth ; or if one can be
punifhed for publifliing by reading
aloutl to his fellow-citizens any fafts
witliin his knowledge, expofing the
vices or follies of the government or
of individuals, and cannot give the
truth of what he has puhliflied in e-
videuce becaufe the expofurc of their
vices or folly lias a tendency to bring
ihe individual or .government into
contempt and ridicule: it therefore
refults, that to fave the feelings of
an indevidual or government from a
y ler ous objeft to the confumer
who pays lor all thofe ' additional
expences, occafioned by the length
ai.u badnefs of the roads and every
otnet inc.-iivenience aKending their
tranf j oitatton -I need not enter into
a detail lo convince you of the uti
lity ot good roads, It is only .necef
lary that 1 liiould prefent the fubjeft
to youi view, and your own judg
ments wnl direct you better than
any thing I can fay '
1 will however take the liberty of
fuggelti'ng tor youi confideration,
whether our roads would not be
rendeiud n uie pei mane lit, and be
belter la.d oil, a: to courfe and ffif-
tanct, &c by petfons appointed by
tlie l.tgifla ure who would be ex
empt hem all thofe localities attach
ed to tlie Inferior -court ? and that
no power but the Legrf’.ature fhould
be competent to alter the c-ourfe.of a
i ubnc road when onge eflabliflied ;
pr< feuted by them to the Houfe of - ought to be removed—The State
Representatives, but no decifion has having pledged the proceeds of the
been had iliereon. | fales of Fraftional furveys for this
As the refult of all onrendeavors ! objeft. I feel that I am in duty
heretofore to afeertain the boundary bound to prefent for your confidera—
between this Hate and the date of tion, every obftacle or difficul.y
North-Carolina, have been unfatis- which prefems itfelf in carrying into
faftorv ; and as the time when Con- complete edeft this very defnabio
grefs may decide on the memorial and important undertaking. To the
now before them is uncertain as well Execution iff.ied by the treafurcr in
as tlie nature of that decifion, I beg
leave to fuggell the propriety of pro
curing (he affiltance of an artid of
undoubted integrity, (kill and expe
rience, and wliofe refidence in nei
ther date, would preclude all idea
of partiality, to go upon the ground
and alcertain with precifion this
purfuance of law for the recovery of
monies due by puvehafers of Fiafti-
onal Surveys, an objeftion has been
made, dating the Execution to hava:
iffued illegally, and that the courfe
purfued by the date for the fecurity
and collection of thofe monies is un-
conditutional for reafons fet forth in
much difputed point. By this means 1 the affidavits of the parties. When
I am perfuaded the date will be bet
ter fatisfied and it will enable us ei
ther to fupport our pretentions be
fore Congrefs with more effeft, or
elfe to relinquifli the purluit. That
fume immediate ftep fliouid be taken
will appear evident from the parti
cular fituation of the people of that
country.—They are now organized
the Treafurer informed me of the
faft, and laid the papers before me,
I iffued an Executive Order, that the
Sheriffs fhould proceed to levy and
colleft the money notwithflanding
tlie (hewing of illegality ■, and altho*
the rule which was granted by rhe
Superior court of Baldwin county,
and ferved upon tlie Treafurer, cai-
as a county of Noith Carolina by the , ling upon him to (hew caufe, wbv a
name of Haywood and are represent- : writ of prohibition fliouid not ifftte,
ed in the Legiflature, and perform has been difmi(Ted, and the (heriffs
all the duties required by the laws “have proceeded to fell the property
of North Carolina of her citizens, levied on by them, where the de
nt the fame time they hold paitial . fendants (till refufed to pay, yet I
Eleftions and fend forward repre- have realonsto.believe that the ftib-
fentatives to the Legiflature oi this jeft will be again renewed, and the
(late. The dignity of the (late de- attempt made, by fuch perfons as are
rnarids that this controverfy fltculd not difpofed voluntarily to make pay-
be brought to a clofe, and if you rnent, to impede the colleft ion of
fliall be of -.opinion that another trial ; tlie money due upon thofe fales —
to afeertain the 35th degree of North The papers marked No 6, will be
Latitude would be either ufeful or ! found to appertain to this fubjrct.
fatisfaftory, I have the plcafure to I Thefraftions as well as fome full iotr,
inform you that you may command I in the 7th diftrift of Baldwin now
the fervices of Mr. Ellicott, than j Twiggs county Hill remain unfold,
whom few men can be fuppofed to
be better qualified for (uch an un
dertaking.
By the abftrafts of Warrants
fuch profacutions tlie only points to juft expofure to ridicule and con-
bc enquired into, are, firlt, the mak tempt, an individual mud be ini-
ing or publifhing tlie book'or writ- mured in a loathfome priion, and
ing; and fecondly, whether the his finances ruined at difcretion,
matter be criminal; and if both thefe wiiilll his family, if he has one, are
points are againlt the defendant, tlie left in mifery and want. I think the vantage in it; and why fliouid not
offence againft the public is com- recognition of fuch a doftrine ap- the (late, who is-fo deeply intereft-
proaches too near to a breach of our ed petlorm the fame labour and reap
Cvinltitution, and is as repugnant to tlie fame advantage ? Syftem with
the fpitit and genius of our govern- energy and perfeverance are only
ment, as it is to tiie feelings of our neceffiry. Arid I will venture to fay,
cit-zens. As all this however de- that our public roads can be made
and alfo that all tlie work to Oe laid \ drawn on the treafury during tlie paft
out llmuid be applied to the eftablifh-
ed road and no other ? And here
permir me to make an obfetvation on
this part of the fubjeft : We find
from paft experience,-shat individuals
are defirous of procuring (Tom tlie
Legiflature excluiive-rights to colleft
toll for mending and keeping in re
pair tlie very worll parts of our roads
or luch as have been confideied al-
moft impaflible, and. find their .ad-
piete.
In a civil aft ion by one individu
al agaiuft another for a libel, the
cafe is very different, for then the
defendant m y givt the truth of the
matter in evidence, and by proving pends upon opinion, and as it is un- equal to, or better than any in the
political year, maiked as document
N° 5, you will find the fum of 32,-
051 dollars 95 3-4'cents has been
drawn for under various appropria
tions. Of the Contingent fund which
makes part of the before-mentioned
lum, JO, 139 dols 57 3-4 cents has
been drawn, leaving a balance of
4.F60 dols. 42 1-4 cents, fubjeft
however to be drawn on for any ac
counts contrafted during tlie politi
cal year, which have not yet been
prefented for payment. It will be
proper here to obferve that a prac
tice has heretofore prevailed w ith the
Legiflature, of requelling, nay often
requiring the Governor by refolution
to pay certain fums therein fpccified
cut of the Contingent Fund,by which
and as they are a part of the pledge
from which the funds for the pay
ment of our public debt is derived,!
take the liberty of propofing foryour
confideration, tlie expediency of fel
ling them under fuch (lipuiations
as you in your wifdom may deem
bed...fome of them having bceo.
leafed out for tlie year 1809 I font
one of my fecretariea laft fpring, with
inllruftions to leafe them put again,
for the year 18 10 which was done,
but the fum is fo inconfiderable Sr
the payment fo uncertain, that, it is
not a fufficient objeft, for which
to delay their fait—the legal inter-
eft on the amount they would fell
for, would very far exceed the a-
meunt of rents.
In order to carry into effeft the
intention of the Legiflature as cx-
prefled in their refolution ol ihe 15ih
December laft, 1 appointed Daniel.
Str.rges, Efq. and dirtfted lijm ny